EXPLANATORY STATEMENT
Issued by the authority of Commissioner of the Australian Federal Police and the Commonwealth Ombudsman
Australian Federal Police Act 1979
Determination 2006/ to determine AFP Categories of Conduct
Purpose of Determination 2006/
Complaints about the conduct of Australian Federal Police appointees are dealt with in Part V of the Australian Federal Police Act 1979 (the Act). Section 40RH of the Act stipulates that an AFP conduct issue is an issue of whether an AFP appointee has engaged in conduct that contravenes the professional standards of the AFP, or engaged in corrupt conduct.
The Determination stands on its own – it does not affect, and is not affected by, other systems for characterising conduct or actions that may be used by the AFP or the Ombudsman’s office. The Commissioner pursuant to section 40RC of the Act independently establishes the professional standards of the AFP to which all AFP appointees must comply. Any breach of the professional standards of the AFP by an AFP appointee may lead to a complaint being dealt with pursuant to Part V of the Act. This Determination does not incorporate references to specific AFP orders, guidelines or directions, other than the AFP Code of Conduct which is publicly available. Conduct which breaches those other instruments would be likely to fall within one or more of the categories, depending on the circumstances of the individual case, for the purpose of the Determination or the Act.
The category into which a particular piece of conduct falls determines how it will be dealt with by the AFP, the Ombudsman’s office and the Australian Commission for Law Enforcement Integrity. The four categories represent matters which must be dealt with under the Act.
The categorisation is for the purpose of investigation and oversight, and is based on the conduct as characterised when it comes to the attention of the AFP, not on how it was or might be characterised following investigation.
The Categories of Conduct in the Determination
Categories 1, 2 and 3 relate to general conduct and category 4 relates to corruption issues. The Determination between the Commissioner and the Ombudsman relates only to categories 1, 2 and 3. Sections 40RK, 40RN, 40RO, 40RP and 40RQ of the Act establish that there are four categories of conduct with the following characteristics:
- Category 1 conduct which is the least serious class of conduct which relates to minor management matters or customer service matters; or reveals a need for improvement in the performance of the AFP appointee concerned; and does not warrant being treated as category 2 or category 3 conduct.
- Category 2 conduct is minor misconduct by an AFP appointee; or inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee; and conduct of that kind would otherwise be category 1 conduct; and warrants, because of its repeated nature, being treated as category 2 conduct for the purposes of this Act; and conduct of that kind does not warrant being treated as category 3 conduct for the purposes of this Act.
- category 3 conduct is serious misconduct by an AFP appointee; or raises the question whether termination action should be taken in relation to an AFP appointee; or involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee; and conduct of that kind does not raise a corruption issue; and
- category 4 conduct is conduct that gives rise to a corruption issue.
The articulation of what makes up each Category of conduct in this determination is based on an assessment of the gravity of the conduct should it occur and whether that particular conduct relevantly fits the description of Category 1,2 or 3 conduct as defined in the Act.
Categories are not comprehensive or fixed:
- If there is no category specified for a type of conduct it falls into category 3;
- If conduct could fall under two or more categories, it falls under the higher or highest of them. For example, conduct that may otherwise be category 2 would be category 4 if it involved a corruption aspect;
- A single action may fall within more than one class within a category (for example, a false statement may also amount to an offence) and within classes in different categories (for example, unwarranted attention in category 2 may also be unlawful discrimination in category 3)
- The category for a matter may change up or down as more information becomes available.
Consultation
Under s40RM(1) of the Act, and having been satisfied in terms of s40RN, s40RO and s40RP of the Act, the Commonwealth Ombudsman and the Commissioner of the Australian Federal Police agree as provided in this Determination.
AFP Appointees have been advised of the context, scope and impact of this Determination as it relates to the handling of breaches of the professional standards of the AFP. The Commissioner and Commonwealth Ombudsman have sole responsibility for jointly agreeing to the categorisation of conduct which breaches the professional standards of the AFP.
Overview
The Australian Federal Police Act 1979 was enacted to establish and regulate the Australian Federal Police (AFP) in order to maintain public safety and protect the national security of Australia. The Act provides a framework for the administration, conduct, and oversight of the AFP, including procedures for handling complaints about the conduct of AFP appointees. The Australian Federal Police Act 1979 Determination 2006/ was introduced to provide clarity on the categories of conduct that the AFP and other oversight bodies should address when handling complaints about AFP appointees. This Determination was enacted by the Commissioner of the Australian Federal Police and the Commonwealth Ombudsman, as per section 40RC of the Act, to independently establish the professional standards of the AFP to which all AFP appointees must comply. The primary policy objective of the Determination is to ensure that complaints about the conduct of AFP appointees are dealt with in an efficient and consistent manner, by categorising the conduct into four distinct categories. This categorisation facilitates a systematic approach to investigating and overseeing AFP appointees' conduct, ensuring that the appropriate measures are taken based on the severity of the conduct in question.
Scope and Application
The Australian Federal Police Act 1979 Determination 2006/ concerns the categorisation of conduct for Australian Federal Police (AFP) appointees, which is crucial for how complaints are managed and investigated. This Determination applies to all AFP appointees and categorises conduct into four classes, each with varying degrees of severity, from minor management or customer service matters in Category 1 to serious misconduct or breaches of the criminal law in Category 3, and corruption issues in Category 4. The geographic reach of this Determination is national, applying across all states and territories of Australia. The categorisation process is intended for the purpose of investigation and oversight and is based on the nature of the conduct as it is first reported. The Determination stands independently from other systems used by the AFP or the Ombudsman’s office, focusing solely on breaches of the AFP's professional standards, as established by the Commissioner. The categories are not exhaustive; conduct that does not fit neatly into any category defaults to Category 3, and a single action can fall into multiple categories if it meets the criteria for more than one. The Commissioner and the Commonwealth Ombudsman have jointly agreed on these categorisations, ensuring a consistent approach to handling complaints about AFP appointees.
Key Provisions
The Australian Federal Police Act 1979 (the Act) establishes the framework for handling complaints about the conduct of Australian Federal Police (AFP) appointees. Section 40RH of the Act identifies that an AFP conduct issue is one where an appointee has engaged in conduct that contravenes the professional standards of the AFP, or engaged in corrupt conduct. The Determination 2006/ (the Determination) provides a detailed categorisation of such conduct, which is pivotal for its investigation and oversight (s40RK, 40RN, 40RO, 40RP, 40RQ). The categorisation system is divided into four categories: Category 1 involves minor management or customer service matters, and reveals a need for improvement without warranting higher classification (s40RK); Category 2 involves minor misconduct or inappropriate conduct that is repeated, but does not rise to the level of serious misconduct (s40RN); Category 3 involves serious misconduct, a breach of the criminal law, or serious neglect of duty, but does not involve corruption (s40RO); and Category 4 involves conduct that gives rise to a corruption issue (s40RP). The Commissioner of the AFP and the Commonwealth Ombudsman are responsible for jointly agreeing on the categorisation of conduct that breaches the professional standards of the AFP (s40RM(1)).
The Act imposes specific obligations on AFP appointees to adhere to the professional standards outlined in the AFP Code of Conduct and any other relevant instruments. AFP appointees must ensure that their conduct does not fall into any of the categories defined in the Determination. Failure to comply with these standards can result in a complaint being dealt with under Part V of the Act. Additionally, AFP appointees are required to be aware of the context, scope, and impact of this Determination as it pertains to their conduct (s40RM(1)). The Commissioner and the Commonwealth Ombudsman have sole responsibility for jointly agreeing on the categorisation of conduct that breaches the professional standards of the AFP, ensuring consistency and fairness in the application of these categories.
In terms of consequences for breaches, the Act does not specify penalties within the Determination itself but refers to the broader provisions of the Act and related legislation. For Category 1 conduct, the consequences may include minor disciplinary action or recommendations for improvement. Category 2 conduct may lead to more significant disciplinary measures, such as warnings or formal reprimands. Category 3 conduct, which includes serious misconduct or breaches of the criminal law, could result in severe disciplinary actions, up to and including termination of employment. Category 4 conduct, involving corruption, would likely lead to criminal charges, significant disciplinary action, and potential prosecution under the criminal law. The specific penalties and outcomes would be determined based on the broader legal framework and the severity of the breach.
The categorisation system is designed to be flexible, with conduct that does not fit into any specified category defaulting to Category 3. If conduct falls under multiple categories, it is classified under the highest or most applicable category. For example, conduct that is otherwise Category 2 may be reclassified as Category 4 if it involves corruption. Additionally, a single action may fall under multiple classes within a category or even across different categories, depending on the nature and context of the conduct. The category assigned to a particular piece of conduct may also change as more information becomes available, reflecting the evolving nature of the investigation.